Terms Of Use
THIS IS AN IMPORTANT LEGALLY BINDING AGREEMENT. This End User
License Agreement (this "Agreement") is an agreement between you
(either as an individual or the entity that you represent) ("you" or
"Licensee") and Calcbench, Inc ("Calcbench") which governs
your use of the "Licensed Software" which is comprised of the: (i) Calcbench Engine that is included as part of a web
offering provided by a hosting provider or reseller that is separately agreeing
to provide you with remote access to the Licensed Software
("Reseller") and (ii) related software components, which may include
associated media, printed materials, and "online" or electronic, user
manuals or other documentation ("Documentation"). The remote provision
of the Licensed Software by the Reseller is referred to herein as the
"Services". IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, THEN
DO NOT ACCESS OR USE THE LICENSED SOFTWARE. BY CLICKING THE "I
ACCEPT" BUTTON AT THE END OF THIS AGREEMENT OR BY OTHERWISE INSTALLING,
DOWNLOADING, COPYING, ACCESSING, ACCEPTING OR USING THE LICENSED SOFTWARE, YOU
ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT, YOU UNDERSTAND THEM, AND YOU AGREE TO BE LEGALLY BOUND BY THEM.
1. LICENSE GRANT, USE AND OWNERSHIP
(a) Limited License. Subject to
the terms and conditions of this Agreement, Calcbench grants to Licensee a
non-exclusive, non-transferable license (without the right to sublicense) (i) to remotely access and use the Licensed Software in
accordance with the Documentation (as defined below) solely in connection with
the Services, for Licensee’s internal business purposes, and solely for the
number of servers for which Licensee has paid the applicable license fee to the
Reseller and (ii) to use the Documentation provided with the Licensed Software
in support of Licensee's authorized use of the Licensed Software. Licensee
shall require all of its employees who utilize the Licensed Software to agree
to the terms and conditions of this Agreement.
(b) Restrictions. Licensee shall
not (i) use the Licensed Software in any manner which
is not expressly authorized by this Agreement or which violates any applicable
law; (ii) copy or reproduce the Licensed Software in whole or in part; (iii)
modify, translate or create derivative works of the Licensed Software; (iv)
reverse engineer, decompile, disassemble or otherwise reduce the Licensed
Software to source code form; or (v) distribute, sublicense, assign, share,
timeshare, sell, rent, lease, grant a security interest in, use for service
bureau purposes or otherwise transfer the Licensed Software or Licensee’s right
to use the Licensed Software.
(c) Ownership. You acknowledge
and agree that Calcbench owns and retains all right, title and interest in and
to the License Software, all patents, copyrights, trademarks, trade secrets and
other intellectual property rights therein and any derivative works thereof,
subject only to the limited license expressly set forth in Section 1(a) hereof.
Licensee does not acquire any other rights, express or implied, in the Licensed
Software. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO CALCBENCH.
(d) Support Services. Calcbench
is under no obligation to support the Licensed Software in any way or to
provide any updates or upgrades to Licensee, except for any support packages
that have been additionally purchased by the Licensee through the Reseller.
(e)
Calcbench Not Responsible for
Services
. You acknowledge and agree that Calcbench is merely licensing the
Licensed Software to you in connection with your use of the Licensed Software
via the Services provided by the Reseller. Calcbench does not provide, and is
not responsible for, the Services.
2. TERM AND TERMINATION.
Licensee's rights with respect to the Licensed Software are
effective until terminated, either pursuant to the terms hereunder or upon the
termination, or automatic expiration, of the agreed upon term of the
subscription to the Services purchased by the Licensee, if any, from the
Reseller. In addition to the specific termination provisions of this Agreement,
Calcbench may terminate this Agreement at any time in the event of a material
breach of the terms herein by Licensee, if Licensee shall fail to cure such
material breach within fifteen (15) days of written notice of such breach from
Calcbench or Reseller. The Agreement shall terminate automatically in the event
that Reseller ceases to have the right to provide the Licensed Software as part
of the Services. Upon any expiration or termination of this Agreement, the
rights and licenses granted to Licensee under this Agreement shall immediately
terminate, and Licensee shall immediately cease using the Licensed Software,
Documentation, and all other tangible items in Licensee's possession or control
that are proprietary to or contain Confidential Information. The rights and
obligations of the parties set forth in Sections 1(b), 1(c), 1(d), 1(e), 2, 3,
4, 5, 6 and 7 shall survive termination or expiration of this Agreement for any
reason.
3. CONFIDENTIALITY
Licensee shall not use any Confidential Information (as defined
below) for any purpose other than as expressly authorized under this Agreement.
Licensee shall limit dissemination of Confidential Information to its employees
who have a need to know such Confidential Information for purposes expressly
authorized under this Agreement. In no event shall Licensee disclose any
Confidential Information to any third party. Without limiting the foregoing,
Licensee shall use at least the same degree of care that it uses to prevent the
disclosure of its own confidential information of like importance, but in no
event less than reasonable care, to prevent the disclosure of Confidential
Information.
"Confidential Information" shall mean all trade
secrets, know-how, inventions, techniques, processes, algorithms, software
programs, hardware, schematics, and software source documents relating to the
Licensed Software, and other information provided by Calcbench, whether
disclosed orally, in writing, or by examination or inspection, other than
information which Licensee can demonstrate: (i) was
already known to Licensee, other than under an obligation of confidentiality,
at the time of disclosure; (ii) was generally available in the public domain at
the time of disclosure to Licensee; (iii) became generally available in the
public domain after disclosure other than through any act or omission of
Licensee; (iv) was subsequently lawfully disclosed to Licensee by a third party
without any obligation of confidentiality; or (v) was independently developed
by Licensee without use of or reference to any information or materials
disclosed by Calcbench or its suppliers. Confidential Information shall include
without limitation the Licensed Software and Documentation.
4. LIMITATION OF LIABILITY
IN NO EVENT SHALL CALCBENCH OR ITS SUPPLIERS HAVE LIABILITY FOR
ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR
LOSS OF INFORMATION), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF
CALCBENCH AND ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY. IN ANY EVENT, THE LIABILITY OF CALCBENCH AND ITS
SUPPLIERS FOR ANY LOSS OR DAMAGES DIRECTLY OR INDIRECTLY SUFFERED BY LICENSEE
AS A RESULT OF THE USE OF THE LICENSED SOFTWARE OR ANY FAILURE, ACT, OMISSION
OR BREACH OF THIS AGREEMENT BY CALCBENCH SHALL NOT EXCEED ONE DOLLAR ($1.00).
5. WARRANTY DISCLAIMER; NO HAZARDOUS APPLICATIONS
EXCEPT FOR ANY WARRANTIES SPECIFICALLY AGREED UPON IN WRITING OR
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED SOFTWARE IS PROVIDED
"AS IS" AND CALCBENCH HAS NOT AND SHALL NOT BE DEEMED TO HAVE MADE
ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY AS TO THE CONDITION, MERCHANTABILITY,
NON-INFRINGEMENT, DESIGN, OPERATION OR FITNESS FOR OR SATISFACTION IN REGARDS
TO A PARTICULAR PURPOSE OF THE LICENSED SOFTWARE, DOCUMENTATION OR ANY UPDATES.
THE LICENSED SOFTWARE IS NOT DESIGNED OR AUTHORIZED FOR USE IN
CRITICAL SAFETY OR OTHER APPLICATIONS WHERE ANY FAILURE MAY REASONABLY BE
ANTICIPATED TO RESULT IN BODILY INJURY, LOSS OF LIFE, OR CATASTROPHIC DAMAGE TO
PROPERTY. IF LICENSEE USES THE LICENSED SOFTWARE IN ANY SUCH APPLICATIONS,
LICENSEE ACKNOWLEDGES THAT SUCH USE IS AT LICENSEE’S SOLE RISK. LICENSEE WILL
INDEMNIFY, DEFEND AND HOLD CALCBENCH AND ITS AUTHORIZED RESELLERS AND SUPPLIERS
HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES AND COSTS ARISING OUT OF OR
IN CONNECTION WITH SUCH USE.
6. OTHER PROVISIONS
(a) Governing Law. This
Agreement, and all disputes arising out of or related thereto, shall be
governed by and construed under the laws of the Commonwealth of Massachusetts
excluding: (i) its conflicts of laws principles; (ii)
the United Nations Convention on Contracts for the International Sale of Goods;
(iii) the 1974 Convention on the Limitation Period in the International Sale of
Goods; and (iv) the Protocol amending the 1974 Convention, done at Vienna April
11, 1980. Licensee hereby irrevocably submits to the exclusive jurisdiction of
the federal and state courts of the Middlesex County, Commonwealth of
Massachusetts.
(b) Restricted Party. Licensee
represents that it is not a Restricted Party, which shall be deemed to include
any person or entity: (1) located in or a national of Cuba, Iran, Libya, North
Korea, Sudan, Syria, or any other countries that may, from time to time, become
subject to U.S. export controls for anti-terrorism reasons or with which U.S.
persons are generally prohibited from engaging in financial transactions; (2)
on the U.S. Department of Commerce Denied Person’s List, Entity List, or
Unverified List; U.S. Department of the Treasury list of Specially Designated
Nationals and Blocked Persons; or U.S. Department of State List of Debarred
Parties; (3) engaged in activities involving nuclear materials or weapons,
missile or rocket technologies, or proliferation of chemical or biological
weapons; or (4) affiliated with or a part of any non-U.S. military
organization. If Licensee becomes a Restricted Person during the term of this
Agreement, the Agreement shall terminate immediately without notice and
Licensee shall have no further rights to use the Licensed Software.
(c) Waiver of Jury Trial. The
parties hereby agree to waive their respective rights to a jury trial of any
claim or cause of action related to or arising out of this Agreement. The scope
of the waiver is intended to be all encompassing of any and all disputes that
may be filed in any court and that relate to the subject matter herein,
including without limitation, contract claims, tort claims, breach of duty
claims, and all other common law and statutory claims. The parties each
acknowledge that the waiver is a material inducement for each party to enter
into a business relationship, that each party has already relied on the waiver
in entering into this Agreement and that each will continue to rely on the
waiver in their related future dealings. Each party further warrants and
represents that each has had the opportunity to have legal counsel review the
waiver. The waiver is irrevocable, meaning that it may not be modified either
orally or in writing, and the waiver shall apply to any subsequent amendments,
renewals, supplements or modifications to this Agreement. In the event of
litigation, this Agreement may be filed as written consent to a trial by court.
(d) Assignment. Licensee shall
not assign this Agreement or any rights or obligations hereunder. Subject to
the foregoing, this Agreement shall inure to the benefit of and be binding upon
the parties and their respective successors and permitted assigns.
(e) Export Regulations. Licensee
understands that Calcbench is subject to regulation by the U.S. government and
its agencies, which prohibit export or diversion of certain technical products
and information to certain countries and individuals. Licensee warrants that it
will comply in all respects with all export and re-export restrictions
applicable to the technology and documentation provided hereunder.
(f) Modification; Severability.
This is the entire agreement between the parties relating to the subject matter
hereof and all other terms are rejected. No waiver or modification of this
Agreement shall be valid unless in writing signed by each party. The waiver of
a breach of any term hereof shall in no way be construed as a waiver of any
term or other breach hereof. If any provision of this Agreement is held by a
court of competent jurisdiction to be contrary to law the remaining provisions
of this Agreement shall remain in full force and effect.
(g) Entire Agreement. This
Agreement, as it may be amended from time to time, sets forth the entire
agreement between you and Calcbench with respect to its subject matter, and it
supersedes all prior communications, understandings and agreements, as well as
the terms and conditions set forth in or on any purchase order, acknowledgement
form, check, or any other document or instrument you may issue to Calcbench or
transmit in connection with your use of the Licensed Software.
(h)
U.S. Government End User
Purchasers
. The Software and Documentation qualify as "commercial
items," as that term is defined at Federal Acquisition Regulation
("FAR") (48 C.F.R.) 2.101, consisting of "commercial computer
software" and "commercial computer software documentation" as
such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp.
227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other
contractual clause to the contrary in any agreement into which the Agreement may
be incorporated, Customer may provide to Government end user or, if the
Agreement is direct, Government end user will acquire, the Software and
Documentation with only those rights set forth in the Agreement. Use of either
the Software or Documentation or both constitutes agreement by the Government
that the Software and Documentation are "commercial computer
software" and "commercial computer software documentation," and
constitutes acceptance of the rights and restrictions herein.
7. CONTACT INFORMATION
If you have any questions about this Agreement, or if you want
to contact Calcbench for any reason, please direct all correspondence to:
Calcbench, Inc
80 Fifth Avenue, Suite 1105
New York, NY 10011
United States of America
or email us at: us@calcbench.com